Delhi District Court
Additional Sessions Judge-Ii (North) : ... vs State on 3 September, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE-II (NORTH) : DELHI
1 Criminal Revision No. 74/11
Case I.D No. 02401R0303082011
Sh. Krishan alias Bablu ...REVISIONIST
Vs.
State ...RESPONDENT
2. Criminal Revision No. 75/11
Case I.D No. 02401R0303132011
Sh. Subhash Tyagi ...REVISIONIST
Vs.
State ...RESPONDENT
3 Criminal Revision No. 76/11
Case I.D No. 02401R0303122011
Sh. Rakesh Kumar ...REVISIONIST
Vs.
State ...RESPONDENT
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 1/13
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4. Criminal Revision No. 77/11
Case I.D No.02401R0303102011
Sh. Mukesh alias Pintu ...REVISIONIST
Vs.
State ...RESPONDENT
Date of institution : 12.07.11
Arguments heard: 30.08.11
Order announced: 03.09.11
ORDER
By this common order, I shall dispose of four revision petitions bearing Criminal Revision No. 74/11 Krishan V. State, Criminal Revision No. 75/11 Subhash Tyagi V. State, Criminal Revision No. 76/11 Rakesh Kumar V. State and Criminal Revision No. 77/11 Mukesh V. State, as all the four revision petitions have been filed by the revisionists against the impugned order dated 09.05.11, passed by Ld. Trial Court.
2 Brief facts of the case are that on 01.08.09 an information regarding a quarrel was received at P.S. Burari. That information was reduced into writing vide DD No. 23A. The DD No. 23A was marked to ASI Mohd. Salim, who alongwith Constable Surender went to the spot i.e Shankarpura, Hoover House, Burari. He [ASI Mohd. Salim] Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 2/13 3 came to know that PCR van had already taken the injured to the hospital. Since, no eye witness was available at the spot, ASI Mohd. Salim went to Aruna Asaf Ali Govt. Hospital alongwith Constable Surender, where he got the MLC of the injured. He again came at the spot but did not find the injured there. Hence, DD No. 23A was kept pending. After two days, one Satpal Nagar gave his statement which was culminated into rukka and on that statement, FIR was registered against the revisionist in respect of offences U/S 323/452/427/506/34 IPC P.S. Burari.
3 After investigation, charge-sheet was submitted by the police against the revisionists. Charge was framed on 09.05.11 against the revisionists by Ld. Trial Court in respect of offences U/S 452, 323, 506 and 427 r/w Section 34 IPC.
4 The impugned order dated 09.05.11 has been challenged by the revisionists.
5 The grounds taken by the revisionists in the revision petitions are that the order on charge and the charge dated 09.05.11 are illegal, incorrect, improper and contrary to law and thus, liable to be set aside; that Ld. Trial Court failed to appreciate that the basis of rukka was the statement of Satpal Nagar recorded by the I.O during course of investigation in pursuant to DD No. 23A; that the statement of Satpal Nagar was duly signed by him, hence the statement was hit U/S 162 Cr.PC; that the FIR based on that statement is void ab-initio Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 3/13 4 and all the proceedings are illegal and void ab-initio; that the FIR is belated one and no explanation has been furnished for the said delay; that there are no allegations against the revisionists in the FIR which suggest the involvement of revisionists in the commission of offence; that Ld. Trial Court failed to appreciate the judgment of Hon'ble Supreme Court in Dajya Moshya Bhil and Ors., AIR 1984 SC 1717 and the judgment of Hon'ble High Court of Delhi in Kashi Ram v. State of Delhi, [2000] IV AD [Delhi] 495; that there was no material on record to suggest commission of offence U/S 427 IPC; that the recovery memo of Honda City Car was prepared only after three days of commission of offence i.e. on 04.06.09; that the site plan is contrary to the recovery memo of car and motorcycle; that none of the ingredients of Section 223 IPC [should be 323 IPC]is made out against the revisionists, that the arrest memos and personal search memos of revisionists are illegal and therefore, revisionists are entitled for discharge; that there was no material to suggest the commission of offence U/S 452 IPC; that charge has been framed in a mechanical manner and revisionists have been deprived of their personal liberty. 6 I have heard arguments from ld. counsel for revisionists, who has taken almost the same pleas, which are taken by the revisionists in the revision petitions. I have also heard ld. Addl. PP for State, who has submitted that there is no illegality in the impugned order passed by Ld. Trial Court.
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 4/13 57 In the present case, the first question, which arises for consideration is whether the statement of Satpal Nagar recorded on 03.08.09 by ASI Mohd. Salim is hit by Section 162 Cr.PC or not. 8 In T.T. Antony V. State of Kerala AIR 2001 SC 2637, it has been observed by Hon'ble Supreme Court that "the telephonic information given to the police station, without its nature being known to the police authority, cannot be said to be the first information report".
In H.N. Rishbud and Inder Singh V. The State of Delhi [1955] 1 SCR 1150 : [AIR 1955 SC 196] it has been held by Hon'ble Supreme court that "investigation usually starts on information relating to commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the Code.
In Sidhartha Vashishta alias Manu Sharma V. State, AIR 2010 SC 2352, it has been held by Hon'ble Supreme Court that "cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Criminal Procedure Code which states that the information, if given orally, should be reduced in writing, read over to the informant and a copy of the same be given free of cost to the informant."
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 5/13 69 It is significant to note that the provisions relating to the "
Information To The Police And Their Power To Investigate" are contained in Chapter XII of the Cr.PC, 1973. Section 154 of Cr.PC provides for the registration of FIR by the Incharge of P.S on receipt of an information relating to the cognizance of offence.
10 Section 161 Cr.PC provides that any police official making the investigation under this chapter may examine orally any person supposed to be acquainted with the facts of the case and person will be bound to answer truly all the questions put by the police official to him other than the questions, the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture. The police official investigating the case may reduce into writing that statement. 11 Section 162 Cr.PC inter-alia provides that any statement made by any person U/S 161 Cr.PC if reduced into writing will not be signed by the person making it.
12 In the present case, a PCR call has been received at P.S. Burari regarding a quarrel at Shankarpura, Hoovers Farm House, Kaushik Enclave. On the basis of that information, DD No. 23A dated 01.08.09 was recorded and the said DD was marked to ASI Mohd. Salim for necessary action. It is worth noting that the said DD was did not provide the particulars of offence or accused. Thus, In view of the judgment of Hon'ble Supreme Court in Manu Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 6/13 7 Sharma's case, it cannot be said that the investigation of the case started as soon as DD No. 23A was marked to ASI Mohd. Salim. 13 In other words, the statement of Satpal Nagar, recorded by the I.O ASI Mohd. Salim cannot be said to be a statement made by Satpal Nagar U/S 161Cr.PC, as the same was not made by him during investigation of case.
14 Thus, I am of the considered view that the plea taken by the counsel for revisionists that the statement of Satpal Nagar is hit U/S 162 Cr.PC is ill founded. It is worth noting that when DD No. 23A dated 01.08.09 was marked to ASI Mohd. Salim no case was registered at that moment and stage of investigation starts after registration of FIR. Hence, Section 162 Cr.PC is not applicable to the statement of Satpal Nagar, which was recorded before registration of FIR. 15 The next question, which arises for consideration is whether there is illegality in the impugned order passed by Ld. Trial Court in framing the charge against the revisionist in respect of offences U/S 452/323/506 and 427 r/w Section 34 IPC.
16 In the present case, the complainant Satpal Nagar has categorically stated that on 01.08.09 at about 6:45 PM he was present at the farm house alongwith his family members. At that time, accused Subhash Tyagi came to his farm house alongwith his sons Mukesh and Babloo and his brother-in-law. They opened the gate and Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 7/13 8 entered the farm house. They were carrying dandas in their hands. Subhash Tyagi restrained him [Satpal Nagar] and started giving danda blows to him. He was beaten by Subhash with legs and fists. His son Amit and wife Rajbala came to save him. Accused Babloo and brother-in-law of accused Subhash Tyagi restrained them and gave beatings to them also with legs and fists. They [the accused] exhorted that "hum dekhte hain ki Shankarpura ke Plot par kaise kaam karne se rokte hain". Thereafter, accused persons also damaged their maruti car No. PB-10Z-2863 and broke the window panes with danda. Accused persons also damaged their Hero Honda motorcycle No. PB- 47B-1680 by pelting stones and bricks. All the accused then threatened the complainant to leave the farm house otherwise, they would kill them. His son Amit informed the police on 100 number. PCR van came and took them to hospital.
17 In the present case, all the revisionists have been charged by Ld. Trial Court in respect of offences U/S 452/323/506/427 r/w Section 34 IPC.
18 It is worth noting that in order to attract Section 34 IPC the 'criminal act' must be done by several persons alleged to have taken part in it "in furtherance" of the common intention of all of them. Intention is a mental condition and is often to be gathered from the facts and surrounding circumstances of the case as direct evidence is Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 8/13 9 very often not forthcoming. To constitute "common intention" it is necessary that the intention of each of the accused is known to other and is shared by them. The common intention can develop even during course of transaction and sometimes it may develop at the spot. The common intention necessarily implies a pre-arranged plan. There must be prior meeting of minds of criminals. The common intention must be to commit particular crime, although actual crime may be committed by anyone sharing the common intention. The act done in furtherance of common intention need not be the very act which is intended by the criminals. It may be preliminary act necessary to be done before achieving the common intention. Incidents subsequent to the act may also have to be considered in arriving at conclusion as whether or not there was common intention. The provision of Section 34 IPC is a rule of evidence. It does not create a substantive offence. The common intention of accused is not practically possible to be established through direct evidence. It has to be inferred from the circumstances established in a particular case. The totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence.
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 9/13 1019 In the present case, as per the complaint of Satpal Nagar, all the accused have entered the farm house, which was in the possession of complainant at the relevant time, by opening the gate of farmhouse. All the accused were carrying dandas in their hands and they gave beatings to the complainant and his family. From these facts, it can be safely stated that prima facie all accused were sharing common intention to cause hurt to the complainant and his family by entering the farmhouse. The MLC of Satpal Nagar and Amit placed on record by prosecution, show that they received simple injuries on their body. It is worth noting that Amit and Rajbala, whose statements have been recorded U/S 161Cr.PC have also stated that all the revisionists/accused caused damage to the motorcycle and car, which were parked in the farmhouse on the relevant date. The accused also threatened the complainant and his family to leave the farm house, otherwise they would be killed by accused. Upon that, Amit, the son of complainant informed the police by dialling 100 number. In these circumstances, it cannot be said that the threat did not cause any harm to the mind of complainant and his family. Thus, the role of accused persons has been mentioned by the complainant Satpal Nagar and Amit and Rajbala {son and wife of complainant respectively} in their statements. It is worth noting that Satpal Nagar has categorically stated in his statement that accused Subhash Tyagi entered the farm house Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 10/13 11 alongwith his sons and brother-in-law.
20 If the complainant could not give the description of revisionists to ASI Mohd. Salim, it cannot be said that no offence has been committed by accused/revisionists on the relevant date. The fact cannot be ignored that all the accused/revisionists are known to the complainant and non-mentioning of description of accused by the complainant in my considered opinion will not materially affect the case of prosecution.
21 So far as, the question that there has been delay in lodging the FIR is concerned, I am of the considered view that prosecution has sufficiently explained the delay in lodging the FIR. 22 It is worth noting that in the present case, on receipt of DD No. 23A, ASI Mohd. Salim went to the spot and found that the injured was not there and had been taken to the hospital by the PCR van. Thereafter, he went to the hospital and collected MLC of Satpal and Amit. Since, the complainant and his son Amit had left the hospital, no statement of injured could be recorded by ASI Mohd. Salim. Thereafter, he [ASI Mohd. Salim] came back at the spot. At that time also, the injured were not found there and thus, DD No. 23A was kept pending. ASI Mohd. Salim recorded the statement of Satpal only on 03.08.09 and thereafter, the FIR was got registered by him. Thus, in these circumstances, it cannot be said that the delay in lodging the FIR Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 11/13 12 is fatal in this case for framing charge.
23 "In Dilawar Balu Kurane v. State of Maharashtra I(2002) CCR 61(SC) it was held by the Hon'ble Supreme Court that Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. But if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 12/13 1324 After going through the material on record, I am of the considered view that there was sufficient material before Ld. Trial Court to frame charges against revisionists in respect of offences U/S U/S 323/452/427/506/34 IPC. Thus, I find no illegality in the impugned order dated 09.05.11 passed by Ld. Trial Court, which requires interference by this court. Accordingly, all the four revisions petitions filed by revisionists are hereby dismissed. 25 Trial Court Record alongwith copy of this order be sent back. Revision files be consigned to Record Room.
Announced in the open court today (Smt. Bimla Kumari)
on 03.09.11 ASJ-II(North)/Tis Hazari,Delhi.
Criminal Revisions No. 74 /11, 75/11, 76/11 and 77/11 Page 13/13